Frank Elmar Barnard v. Linda Nell Barnard--Appeal from 393rd District Court of Denton County

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Laws-info.com » Cases » Texas » 2nd District Court of Appeals » 2004 » Frank Elmar Barnard v. Linda Nell Barnard--Appeal from 393rd District Court of Denton County

State: Texas

Court: Texas Northern District Court

Docket No: 02-03-00024-CV

Case Date: 04/01/2004

Plaintiff: DREW WAYNE ODOM

Defendant: THE STATE OF TEXAS--Appeal from 9th District Court of Montgomery County

Preview:Jane C. Doades, Individually and as Administratrix of the Estate of Thomas W. Doades, and Lynn Doades Bryant v. Kamal A. Syed, M.D.; Hill Country Specialty Clinic; and Sid Peterson Memorial Hospital--Appeal from 216th Judicial District Court of Kerr County
MAJORITY | MAJORITY DISSENTING OPINION No. 04-01-00640-CV Janet C. DOADES, Individually and as Administratrix of th Estate of Thomas W. Doades, and Lynn Doades Bryant, Appellants v. Kamal A. SYED, M.D., Hill Country Specialty Clinic, and Sid Peterson Memorial Hospital, Appellees From the 216th Judicial District Court, Kerr County, Texas Trial Court No. 00-664-A Honorable Charles Sherrill, Judge Presiding Opinion by: Sarah B. Duncan, Justice Dissenting opinion by: Catherine Stone, Justice Sitting: Catherine Stone, Justice Paul W. Green, Justice Sarah B. Duncan, Justice Delivered and Filed: October 9, 2002 The majority holds that Doades' attorney did not tender any evidence to support an extension of time under section 13.01(g). In order to be entitled to a section 13.01(g) extension, the Doades had the burden to show some excuse of accident or mistake in order to establish that they did not act "intentionally" or with "conscious indifference." De Leon v. Vela, 70 S.W.3d 194, 200 (Tex. App.--San Antonio 2001, pet. denied). The Doades' attorney, William B. Curtis, stated in his affidavit that he was aware of Texas law and believed the expert report satisfied the Act's requirements. Curtis further noted that he filed the expert report within 90 days of filing the lawsuit, and defense counsel never complained that the report was inadequate; therefore, Curtis believed that defense counsel shared his belief that the expert report was sufficient. The basis for the majority's holding is that Curtis "nowhere states in his affidavit the nature of his 'mistake or accident'" or claims "'mistake or accident' as the reason for filing a noncomplying report." Three of our sister courts have concluded that evidence that an attorney mistakenly believed an expert report complied with the Act is sufficient to establish mistake and to negate conscious indifference. Whitworth v. Blumenthal, 59 S.W.3d 393, 401-02 (Tex. App.-Dallas 2001, pet. dism'd by agr.); Gutierrez v. Walker, 50 S.W.3d 61, 65-66 (Tex. App.--Corpus Christi, pet. granted); Horsley-Layman v. Angeles, 968 S.W.2d 533, 536-37 (Tex. App.--Texarkana 1998, no pet.). The fact that Curtis stated

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that he "believed" the report complied with the act, as opposed to stating that he "mistakenly believed" the report complied the act cannot be the basis for denying a section 13.01(g) request. Such a position elevates form over substance, and a trial court should focus on the substance of an affidavit not certain "catch" words. If an attorney "believes" an expert report is sufficient, and the expert report is not, then the attorney's belief is necessarily mistaken. Although an attorney may be negligent in failing to ensure that an expert report satisfies the Act's requirements, negligence does not equate to conscious indifference. See Perry v. Stanley, 2002 WL 1430409, at *6 (Tex. App.-Texarkana Jul.3, 2002, no pet. h.); see also Roberts v. Medical City Dallas Hosp., Inc., 988 S.W.2d 398, 403 (Tex. App.--Texarkana 1999, pet. denied) (failure to read statute only negligent not conscious indifference). This is particularly true under the circumstances in this case where Curtis filed the report 90 days prior to the deadline, and the defendants waited until the 180-day deadline had passed to complain. Because Curtis's affidavit negating conscious indifference was uncontroverted, the trial court abused its discretion in denying the section 13.01(g) extension. See Whitworth, 59 S.W.3d at 401 (holding trial court abuses its discretion in denying extension if plaintiff's evidence negating conscious indifference is uncontroverted); Landry v. Ringer, 44 S.W.3d 271, 275 (Tex. App.-Houston [14th Dist.] 2001, no pet.) (same). Because the majority holds otherwise, I respectfully dissent. Catherine Stone, Justice PUBLISH

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